Citation Nr: 21011865 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-02 691 DATE: March 2, 2021 ORDER Entitlement to a compensable disability rating for herpes simplex virus, type 2, is denied. FINDING OF FACT The Veteran’s genital herpes does not cover more than 5 percent of her entire body or exposed skin and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected herpes simplex virus, type 2, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to January 2011. Entitlement to a compensable disability rating for herpes simplex virus, type 2 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that she is entitled to a compensable disability rating for her genital herpes. She asserted that the condition has progressively worsened and as a result of active outbreaks she had lesions and scarring covering over 20 percent of her total body area. VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the veteran will be applied. Under the rating criteria prior to August 13, 2018, Diagnostic Code 7820 pertained to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases), to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Under the regulations in effect at the time the Veteran filed her claim, Diagnostic Code 7806 provided a 0 percent rating where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). In Johnson v. Shulkin, 862 F. 3d 1351 (Fed. Cir. 2017), the Federal Circuit Court agreed with the Secretary’s interpretation of Diagnostic Code 7806 finding that the term “systemic therapy” did not include topical therapy that affects only the area to which it is applied, and the use of topical corticosteroids did not automatically mean systemic therapy. Under the new regulations, effective August 13, 2018, Diagnostic Code 7820 will be rated under a General Rating Formula for Skin, under which a 10 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating will be assigned if the disability meets at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Alternatively, the disability can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. The Veteran underwent a VA examination in February 2018. The examiner noted a diagnosis of herpes simplex virus, type 2. She reported that the condition had worsened over time. The Veteran reportedly sought treatment for an outbreak approximately a year earlier. The examiner noted that the condition did not affect the Veteran’s head, face or neck. There were no associated systemic manifestations. The Veteran had received constant or near constant treatment with oral or topical medication, Valtrex, in the previous 12 months. Treatment with systemic corticosteroids or other immunosuppressive medication was not required. No debilitating or non-debilitating episodes were noted in the previous 12 months. The examiner indicated that the condition affected less than 5 percent of exposed or total body. The Veteran denied any current active lesions. VA and private treatment records throughout the period on appeal fail to document any outbreaks of herpes simplex virus and the Veteran consistently denied any rashes or lesions. For the entire appeal period, the Veteran’s genital herpes was not shown to cover more than 5 percent of the entire body or cover any exposed area of the body. The VA examination report does not reflect that the Veteran’s genital herpes requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, nor does any other evidence. As the Veteran’s genital herpes covers less than five percent of her body and exposed area, has not required systemic therapy, and does not cause functional impairment, a compensable rating is not appropriate for the entire appeal period. A rating under the diagnostic code for scars is not appropriate as the Veteran’s genital herpes lesion is not permanent and resolves with treatment. Accordingly, the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a compensable disability rating for herpes simplex virus, type 2. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claims are denied. 38 U.S.C. § 5107(b); 38C.F.R. §3.102. (Continued on the next page)   The Board notes the Veteran a claim for entitlement to a total disability rating based on individual unemployability (TDIU) is not for consideration as part of the increased rating claim before the Board because TDIU was granted effective for the entire appeal period. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.